In re A.D.

Supreme Court of West Virginia

March 24, 2017

In re: A.D. and T.D.

Wood
County 15-JA-172 & 15-JA-173

MEMORANDUM DECISION

Petitioner
Father C.D., by counsel Eric K. Powell, appeals the Circuit
Court of Wood County's September 23, 2016, order
terminating his parental rights to six-year-old A.D. and
four-year-old T.D.[1] The West Virginia Department of Health and
Human Resources ("DHHR"), by counsel Lee Niezgoda,
filed its response in support of the circuit court's
order. The guardian ad litem ("guardian"), Jessica
E. Myers, filed a response on behalf of the children also in
support of the circuit court's order. Petitioner filed a
reply. On appeal, petitioner argues that the circuit court
erred in denying his motion to continue the dispositional
hearing and his motion for post-termination visitation.

This
Court has considered the parties' briefs and the record
on appeal. The facts and legal arguments are adequately
presented, and the decisional process would not be
significantly aided by oral argument. Upon consideration of
the standard of review, the briefs, and the record presented,
the Court finds no substantial question of law and no
prejudicial error. For these reasons, a memorandum decision
affirming the circuit court's order is appropriate under
Rule 21 of the Rules of Appellate Procedure.

In
November of 2015, the DHHR filed a petition for abuse and
neglect against petitioner alleging that he abused
prescription drugs, left drug paraphernalia in the reach of
his children, and was under the influence of drugs while
being the primary caretaker for his children. The following
month, petitioner stipulated to the conditions of abuse and
neglect as alleged in the petition. Thereafter, the circuit
court granted petitioner a post-adjudicatory improvement
period. The terms and conditions of petitioner's
improvement period required him to undergo substance abuse
and psychological evaluations, to participate in parenting
and adult life skills classes, and to submit to random drug
screens. The circuit court also granted petitioner visitation
with his children.

Subsequently,
the circuit court held several hearings to review
petitioner's compliance with the terms and conditions of
his improvement period. While the DHHR presented evidence
that petitioner visited with his children, the evidence
established that he failed to comply with other terms of his
improvement period. Specifically, the DHHR presented evidence
that petitioner failed to undergo a psychological and
substance abuse evaluation, failed to submit to drug screens,
and was inconsistent in participating with parenting and
adult life skills classes. Furthermore, petitioner admitted
to smoking marijuana. Despite this evidence, the circuit
court continued petitioner's improvement period.

In July
of 2016, the circuit court held a hearing on the DHHR's
motion to terminate petitioner's improvement period
during which the DHHR presented evidence that petitioner
continued to abuse drugs and did not participate in therapy
or parenting and adult life skills classes. The DHHR also
presented evidence that petitioner's visitations with his
children were "not happy, bonding, or even healthy for
the children, " that petitioner engaged in
"argumentative" behavior with the children, and
that petitioner failed to incorporate appropriate parenting
techniques. For these reasons, the circuit court terminated
petitioner's post-adjudicatory improvement period by
order entered August 11, 2016.

In
September of 2016, the circuit court held a dispositional
hearing during which the DHHR presented evidence that
petitioner could not correct the conditions of abuse and
neglect because he failed to comply with the terms and
conditions of his improvement period.[2] The DHHR presented evidence
that they had not had contact with petitioner since July 11,
2016, and that he failed to attend an outpatient drug
rehabilitation program and parenting and adult life skills
classes. The circuit court was also presented with evidence
that petitioner failed eleven drug screens and had admitted
to smoking marijuana. Finally, the DHHR presented evidence
that services providers discharged petitioner from therapy
services due to his noncompliance. Accordingly, the circuit
court terminated petitioner's parental rights to his
children by order entered on September 23,
2016.[3] This appeal followed.

The
Court has previously established the following standard of
review:

"Although conclusions of law reached by a circuit court
are subject to de novo review, when an action, such
as an abuse and neglect case, is tried upon the facts without
a jury, the circuit court shall make a determination based
upon the evidence and shall make findings of fact and
conclusions of law as to whether such child is abused or
neglected. These findings shall not be set aside by a
reviewing court unless clearly erroneous. A finding is
clearly erroneous when, although there is evidence to support
the finding, the reviewing court on the entire evidence is
left with the definite and firm conviction that a mistake has
been committed. However, a reviewing court may not overturn a
finding simply because it would have decided the case
differently, and it must affirm a finding if the circuit
court's account of the evidence is plausible in light of
the record viewed in its entirety." Syl. Pt. 1, In
Interest of Tiffany Marie S., 196 W.Va. 223, 470 S.E.2d
177 (1996).

Syl. Pt. 1, In re Cecil T., 228 W.Va. 89, 717 S.E.2d
873 (2011). Further, our case law is clear that "in the
context of abuse and neglect proceedings, the circuit court
is the entity charged with weighing the credibility of
witnesses and rendering findings of fact." In re
Emily, 208 W.Va. 325, 339, 540 S.E.2d 542, 556 (2000)
(citing Syl. Pt. 1, in part, In re Travis W., 206
W.Va. 478, 525 S.E.2d 669 (1999)); see also Michael D.C.
v. Wanda L.C., 201 W.Va. 381, 388, 497 S.E.2d 531, 538
(1997) (stating that "[a] reviewing court cannot assess
witness credibility through a record. The trier of fact is
uniquely situated to make such determinations and this Court
is not in a position to, and will not, second guess such
determinations.").

On
appeal, petitioner assigns error to the circuit court's
failure to grant him post-termination visitation with his
children. With respect to post-termination visitation, we
previously have held that

[w]hen parental rights are terminated due to neglect or
abuse, the circuit court may nevertheless in appropriate
cases consider whether continued visitation or other contact
with the abusing parent is in the best interest of the child.
Among other things, the circuit court should consider whether
a close emotional bond has been established between parent
and child and the child's wishes, if he or she is of
appropriate maturity to make such request. The evidence must
indicate that such visitation or continued contact would not
be detrimental to the child's well[-]being and would be
in the child's best interest.

Syl. Pt. 5, In re Christina L., 194 W.Va. 446, 460
S.E.2d 692 (1995). Under our holding in Christina
L., the decision to grant post-termination visitation is
a discretionary one for the circuit court based on its
consideration of the circumstances of the case before it.

Here,
petitioner maintains that post-termination visitation was in
the children's best interests because he shared a bond
with them and continued visitation was not detrimental to
their well-being. Following our review of the record on
appeal, the parties' arguments, and pertinent legal
authority, we find no abuse of discretion in the circuit
court's decision to deny post-termination visitation
based on the facts of this case. The record on appeal clearly
shows that, while petitioner participated in supervised
visitation with his children, the visitations became
unhealthy for the children and that he failed to implement
appropriate parenting techniques ...

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